Tiptoeing Around the Civil Rights Act

The Civil Rights Act is an abiding dilemma for members of the right-wing Church of Not Gay. As marriage equality continues to progress, their latest cause celebre is arguing that believers should have the right to refuse service to gay couples – whether they be photographers, bakers, owners of wedding venues, even county clerks – all in the name, supposedly, of “religious liberty”, which they believe should be a trump card allowing holders to opt out of any generally applicable law.

The problem, from their perspective, is that the historical parallel is too raw and too obvious: it wasn’t that long ago that many business owners also demanded the right to refuse service to black people (and, yes, claimed a religious justification for doing so). From both a legal and a cultural standpoint, this argument has already been settled: business owners who offer a public accommodation can’t pick and choose their customers on the basis of irrelevant characteristics such as race, gender, or sexuality.

The modern advocates of discrimination do their best to tiptoe around this parallel, but rarely with much success. Witness this exchange on Twitter, featuring the Heritage Foundation’s Ryan T. Anderson, who was raging about the aforementioned wedding-venue case:

.@ZackFord what you call "discrimination" is simply freedom. the basis of free association and contract and speech. Why do you hate freedom?

That occasioned a sudden and sharp change of tone, as Anderson did a 180-degree turn to argue that “free association” somehow protects the right to discriminate against gay people, but not the right to discriminate against black people. See for yourself:

In this tweet, he linked to an essay also written by himself, in which he argues, basically, that only certain kinds of prejudice are old enough to qualify for legal protection.

Belief that marriage is a male–female union is shared by the Jewish, Christian, and Muslim traditions; by ancient Greek and Roman thinkers untouched by these religions; and by various Enlightenment philosophers. It is affirmed by canon, common, and civil law and by ancient Greek and Roman law… Only late in human history does one see political communities prohibiting intermarriage on the basis of race.

The first and most obvious point is that he’s drawing lines arbitrarily to arrive at his desired result. Bans on interracial marriage may be “late” compared to the entire span of human history, but as far as Western civilization goes, they’re very old indeed. In the United States, some of them date back to the 1660s, the colonial era. Why doesn’t this qualify as “old enough”? Why should it matter if a prejudiced belief is 300 years old or 3,000?

But more fundamentally, this argument is plainly irrelevant, since we’re not ruled by the dead hand of the past. The law in America isn’t based on what ancient Greek and Jewish philosophers believed; it’s based on the Constitution and the Bill of Rights. And the Constitution requires equal protection of the law – which, as an overwhelming majority of recent court cases have agreed, means that arbitrary gender-based restrictions on the legal benefits of marriage can’t stand.

On the flip side of this, defining our laws solely by reference to what long-dead people believed would open the door to all kinds of evils that were ubiquitous in the ancient world: slavery, monarchy, theocracy, torture, genocide as a tactic of war. We reject these practices because we’ve made moral progress, because we recognize as injustice many things that were once widely accepted. Saying that some belief should be preserved just because it’s old is the clumsiest imaginable example of fallacious reasoning.

However, as faulty as Anderson’s argument is, he at least sees racial discrimination as a bad thing deserving of a legal remedy. There are conservatives and libertarians who take the opposite tack – who argue that we should repeal civil-rights and anti-discrimination laws, and bring back the days when lunch-counter owners could ban black customers or stores could hang out the “No Jews Need Apply” shingle. Senator Rand Paul said this in 2010, for example, though he later backpedaled on it; the same is apparently true of failed Senate candidate Todd Akin. Other, more marginal figures said soeven less apologetically. Granted, this is still a fringe position – but the more legal losses that religious conservatives rack up in the battle over anti-discrimination laws, the more prominent I predict it will become.

Image: Sign on a whites-only restaurant in Lancaster, Ohio, August 1938. Original via Library of Congress.

I agree that it’s a bad idea to define your laws solely by what long-dead people believed — long-dead people like, for example, the ones who wrote your Constitution.

arensb

define your laws solely by what long-dead people believed

Right. And that’s why I prefer to argue the value of the US constitution on its own merits, rather than who wrote it.

Elizabeth

The United States Constitution is designed to grow and change with time.

L.Long

J-D is right , which why I do not argue that the buyBull is good/bad based on the fact that it was believed by stone=age dessert dwelling goat herds, but on the merits (none) reflected in the text (which ever text they claim is real). And just as democracy-communism-marxism-other_isms all have good points and bad points and should be discussed on their own merits and not on what some dims BELIEVE.

L.Long

Want to exclude blacks-gays-what.have.you??? Easy open your business to the congregations only by having them on church property and declare all profits as charity donations. Good luck on making enough to go on vacation. Although all churches lie and cheat on their charities, you may be able to afford the trip to Bahamas.
But the laws says deal with the public and you DO NOT discriminate…!!! And until the religious dicks on SCOTUS say otherwise DEAL!!!! Also the laws does NOT force religious bigots to do religious services for the people they are bigoted against. As business or public official your bigotry means NOTHING!!!!

Black Leaf

Preaching to the choir, it’s usually the religious conservatives who pull the “But the Founding Fathers!” card.

It’s a ridiculous argument coming from the people who want to ban abortion, gay marriage, and everything else they don’t like.

Sven2547

“We only disagree with the spirit of the Civil Rights Act!”
— the Christian Right

Shawn

Jim Crow laws were promulgated by state and local governments and enforced by racist local authorities, although it’s unquestionable that they were responding to the real wishes of their (white) constituents. This has always seemed to me to be a good area of attack for libertarian sorts who want to complain about oppressive government practices. However, you almost never see this done – Rand Paul above flubbed an easy chance to argue, “We should have gotten rid of clearly illegal local segregation laws that forced businesses to discriminate, but we should not have forced individual businesses not to discriminate either. The non-discriminating business would have naturally won out in free competition.” (Personally I think this argument is overly simplistic, but not entirely without merit.) I wonder if that’s because modern libertarianism focuses on federal government, and wants to return us to those days of local government supremacy, maybe not wanting to dwell on this point so much.

edivimo

You can use other rejoinders, like women suffrage or women rights. That rights are the newest and with less history.

Mitch

I think the argument is both overly simplistic and totally without merit, like Libertarianism in general. It sound really good until you think about it.

As a child of the South I will say with absolute certainty that if Civil Rights had not been passed—and instead, we followed Rand Paul’s advice—the discriminating businesses would be doing well to this day.

Jeff

To quote some character from Atlas Shrugged, he needs to check his premises.

Jeff

I hate it when “the intent of the founders” is brought up as an issue to be considered. What, are we all supposed to bust out our Ouija boards and ask them? Why do the opinions of dead people outweigh the opinions of living people?

AtheistCatLady

Dude, no one is forcing you to associate with people, it’s just how stuff works. If you have a business that deals with the public, you have to associate with the public- and the public includes OMG GAY PEOPLE. I wonder how far they’ll try to take this. Is firing an employee who refuses to serve gay people a violation of the employee’s freedom of religion/association?

Shawn

Almost certainly true, and I didn’t mean to suggest that it was a good or correct argument, just that it wasn’t completely nonsensical like what Paul ended up saying in that interview. You could have empirically tested it, anyway. I suspect that in the absence of official legal requirements to segregate, but also in the absence of an affirmative demand to desegregate, you would have seen that social pressure so common in the South for businesses that didn’t continue to segregate. You wouldn’t get invited to the social club, your kids would get hassled at school, there’d be all sorts of fire code violations found in “random” weekly inspections, eventually your house would burn down, and it would probably still be that way in many places even now. That said, there were probably a fair number of business owners who didn’t really care one way or the other who they served so long as their money was green, and not everywhere was the Deep South.

arensb

Just as soon as he stops beating his wife, you mean?

Science Avenger

Bans on interracial marriage may be “late” compared to the entire span of human history, but as far as Western civilization goes, they’re very old indeed. In the United States, some of them date back to the 1660s, the colonial era. Why doesn’t this qualify as “old enough”? Why should it matter if a prejudiced belief is 300 years old or 3,000?

Well, if we are going to play the “arbitrary time selection” game, then I choose, not written human history, but the entire span of human history, which is about 200,000 years. That has interracial bans appearing after 99.8% of human history had passed, and anti-gay bans at 98.5%, making them late and later.

Bdole

Right now business owners who discriminate aren’t obvious enough. They seem like nice people to all their non-gay customers. But, then they turn away some in private. This is a betrayal of expectations and a waste of everyone’s time.

I’d like to see an experiment where business owners who wish to discriminate are permitted to do so provided they are also required to put up a BIG, BRIGHT, NEON sign in their storefront and also state everywhere else they advertise in BIG, BOLD LETTERS that they discriminate against %certain_people%. I wonder how many will just shut-up about it and how many will go out of business by doing so.

This will help me avoid those businesses. And in a short time, I think the American public will vote them out of business. These assholes think they’re the moral majority, but I’d like to see them find out they’re not.

Not just with amendments. Otherwise all guns more advanced than a blunderbuss would be illegal, seeing as the Founders couldn’t have possibly intended for the sale of handguns and machine guns, as neither existed back then.

The 2nd Amendment (curiously) said nothing about selling arms, thus recognizing a right to keep and bear them, but not explicitly recognizing a right to sell or buy them (though this may fall under the 9th Amendment). I think the Founding Fathers would have understood modern-day firearms to fall under the definition of “arms”.

Science Avenger

The problem is, in some places, they still are the majority. I guarantee you in many places in the deep south a business that put up a neon sign that said “No blacks and queers allowed” would attract more people than they’d repel. That’s why Jim Crow laws sustained themselves, and would have until the present day, sans federal mandates.

Bdole

Yeah, a few businesses would probably see an uptick if they did something like that. I’d like to think that we’ve learned something in the last 60 years, but who knows. My little experiment (which of course would never happen) would also show us up for either the same or better people than we were before.

Al Petterson

Ryan’s premise is all kinds of wrong – it is so wrong it’s hard even to isolate single flaws. It’s absolutely false that bans on marriage outside your race/subrace are relatively recent. All kinds of tribes – Hebrews among them (not to single them out, but because we happen to have records of what their laws were) – had rules restricting marriage outside the tribe. That kind of discrimination is as old as the hills.

Marriage as a contract of a man and a woman isn’t anything like universal. Polygamy is absurdly common, and polyandry hardly unknown, if you look through history. Women marrying other women to inherit a dead male relative’s property would happen fairly routinely in many societies.

And most marriage from centuries past was based on relationships and arrangements that our society would consider, to varying degrees, alien or horrifying. The *entire* concept of marriage as we view it today – even ignoring the issue of gender – that is, marriage defined exclusively as two adults consenting to their own legal union, based on their attraction to one another – is a modern invention.

Al Petterson

That’s exactly what he argued when he backpedaled. And, as you say, it’s still specious.

He “clarified” that the only part of the CRA he had a “problem” with was the mandate on individual businesses not to discriminate in their clientele. He affirmed that government, at any level, should not discriminate.

Guest

“Because you won’t stop beating your wife”, is I believe the obvious rejoinder.

J-D

Your Constitution has some good things about it and some bad things — but it’s not a good choice for a standard to judge by, to use conformity with it as a criterion for evaluation. ‘X is against the Constitution!’ doesn’t mean ‘X is bad’, and ‘X is in line with the Constitution!’ doesn’t mean ‘X is good’.

J-D

Iron Age, not Stone Age.

L.Long

Most of the people we talk against don’t know about the iron or bronze ages. Its usually stone age then us.
At least that is my experience and the only place I get corrected is on atheist blogs.
And it may be that they where mostly sheep herders as well but I like the sound of goat herders.

PremiumOsmium

Also the ancient Romans didn’t regard a marriage as valid under Roman law if one of the people was a non-Roman. That’s why they got riled up when Mark Antony claimed that he married Cleopatra. It wasn’t a big deal if he was sleeping with her or got her pregnant.

PremiumOsmium

It’s funny how conservatives like to make moral arguments against equality but in favor of “freedom”. But would they be convinced by arguments that ignore morality entirely and instead focus on the economic side?
For example, businesses are hurt if they arbitrarily rule out certain groups for employment and commerce. But social pressure makes this form of discrimination acceptable, even encouraged. So by legally banning discrimination, employers are instead compelled to act in their own rational, economic self-interest, which in turn benefits the economy as a whole.
Likewise, marriage itself is a good thing. Married couples are healthier, happier, more productive, support one another, and are less likely to commit crimes or abuse drugs or alcohol. Thus, if we want a more productive workforce that would be less of a drain on the social safety net, we should encourage marriage. Denying same-sex couples the right to marry is bad for the economy.

No, I agree. The Constitution is not a moral standard. I don’t believe it was ever intended to be.
Saying “X is against the Constitution” does mean that “X is illegal”. The Constitution is a basis for laws, not morality.

Bdole

Faith in humanity: skewered.
But, it IS the deep south and these are Republicans. So, basically another planet.

Richard Hollis

Big LOL at “Why do you hate freedom?”! I didn’t realise people actually said this. I thought it was a tongue-in-cheek quip, like “Won’t SOMEONE think of the children?!”

Seriously, is Ryan Anderson spectacularly trolling us all?

ortcutt

I get the impression that that is what conservative religious people want, to live in a gay-free zone. I’m sure they would prefer to have them locked away (pre-Lawrence style), but if that’s not available, they’ll settle for never interacting. Maybe they should consider gay Bantustans

ortcutt

The fact that the law is a technology is something that most lawyers understand but that the theologically-inclined among us don’t understand. Instead we hear about marriage being decreed by god or how so-called “natural law” requires “organic union” for marriage. These fallacious jurisprudential theories are at the root of the mistake that the marriage equality opponent makes.

In every society we are permitted to ask whether our legal technology is serving our best interests and whether it lives up to the standards we have decided are requirements of that technology. On the first count, it is certainly true that same-sex families will be better off if they can utilize the technology of marriage and different-sex families will be in the same position. On the second count, marriage inequality violates the principles of Equal Protection and Substantive Due Process concerning a fundamental right, i.e. marriage, that we have decided that our legal technology must possess. That’s all that anyone should have to say about the subject. This should be a legal no-brainer, a one paragraph issue, but these bad conceptions of the law that the theologically-inclined bring to bear keep them from

Plutosdad

I have heard that a lot from some libertarian friends, that the market would kill discrimination, and the government was forcing people to discriminate because a white business owner loved green more than he loved white.

However, when you watch new clips at the time, or look at history when black business owners were lynched for the egregrious crime of having a well run, competitive business, PICNICS during lynchings, once even burning an entire town down because one black man dared to run away from a lynch mob, then I really can no longer believe it was the government forcing its way on white business owners who weren’t discriminating enough.

I am not accusing you of that thinking.

I think if we lived in a better world we wouldn’t need these laws. But even oxytocin that makes people feel good, some say also causes more anti-out-group behavior and attitudes. So who knows if we will ever have a world where they are not necessary.

Plutosdad

Also, even growing up in the North (Chicago), we did not really learn about the horrors of Jim Crow and the backlash against the Civil Rights movement. We just didn’t have the brainwashing of alternative history like the North was trying to take over the South, and it wasn’t about slavery , etc.

I didn’t learn a lot until after college and started studying other opinions than the ones I already held, which takes awhile because I, at least, feel defensive. Such as I used to say things like “we’re not all like that!” etc until I learned to not take it personally and to try to be open minded. I think the most damning book I’ve read is The New Jim Crow by Michelle Alexander. It was an eye opener for me.

mnpollio

An outrageously annoying and foolish argument from Christians which I see being made again and again. When you run a business (or work for a business) that serves the public, then that means you serve “the public”…period! It does not mean you get to pick and choose which demographics your business (or you) does not get to serve (i.e., blacks, women, gays, etc.). There was a story in the news a few years ago about a pediatrician, who refused to see the sick child of a couple that had an appointment with him because the parents had tattoos and as a Christian he thought they were the mark of the devil, or some such nonsense. This is no different than that foolishness. If you are not prepared to serve all equally at a business that serves the general public, then either don’t bother opening said business or don’t bother working there. I feel this is the same with pharmacists, who insist on planting themselves in positions to dispense medications and then gainsay people and their own physicians because he/she wants to exert their morals on you. Just do your damn job and if you can’t then you should either quit or be replaced. Serving the general public (and things like filling prescriptions) are not over and above business/job descriptions – they ARE the job descriptions.

J-D

I find it interesting to reflect on something Jefferson wrote in a letter to Madison:

‘On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. … The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. … Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.–It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law has been expressly limited to 19 years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be indeed if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly and without impediment. But this is true of no form. …’

I don’t say this view is demonstrated to be superior because it comes from Jefferson. That would be a massive inconsistency on my part. I just think it’s interesting to reflect on it.

(If you want to know how Jefferson came up with the specific figure of 19 years, you can find the whole text of the letter online.)

J-D

If you judge the laws by their conformity to the Constitution, by what then do you judge the Constitution?

If you say ‘Discrimination is unconstitutional’, how do you deal with somebody who says ‘In that case, we need to amend the Constitution’?

Annerdr

You vote. You get active politically. You argue and discuss and analyze. There have been plenty of Constitutional amendments that have been proposed and not passed. It is actually very hard to get one to pass, so the reason for needing it must be made clear. If you feel the proposed amendment is bad, then you have to make that clear, explain your reasoning.
By the way, laws are deemed constitutional based on their conformity with the Constitution, but that isn’t the only basis for judging a law. Laws can be Constitutional but bad for society or morally wrong.

KeatonRH

Not to mention the fact that gay sexual relationships were, in some situations, actually socially acceptable in ancient Greece and Rome.

J-D

‘… conformity with the Constitution … isn’t the only basis for judging a law. Laws can be Constitutional but bad for society or morally wrong.’